Recently, while preparing a paper on the U.S. making-available right, I ignored a weak argument made in Â§ 13.9 of Patry on Copyrights. The treatise had argued that even if the Â§ 106(3) distribution right encompassed a making-available right, it should not do so as to digital distribution because it was not contemplated in 1965, when the text of the Â§ 106(3) distribution right took the form eventually enacted in the Copyright Act of 1976. In this particular context, no reply seemed warranted.

Since then, I have recalled that this and similar arguments for the special treatment of computer networks and other new technologies may be dead wrong, but they have been made regularly during most recent high-profile disputes about copyrights. Consequently, a more general response is warranted.

Consider, for example, the automatic-is-special argument made in the Second Circuit's decision in The Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121, 131 (2d Cir. 2008) [hereinafter Cablevision]. The Cablevision Court held that an entity acts "volitionally" by hiring a human to press "record" in response to a third-party request to use its specially-designed copying system. But the Court then held that the same entity acts "non-volitionally" if it achieves the same result by hiring a human to program a computer to press "record" in response to the same third-party's request to use the same specially-designed copying system:

In determining who actually "makes" a copy, a significant difference exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.

Frankly, this is among the most untenable distinctions that I have seen in an appellate opinion. The design and implementation of a complex, networked automated system is wholly "volitional." If an employer instructs an employee, "Make a copy when a customer requests one," any resulting copies were created as a result of the employer's volitional act. The same conclusion should necessarily follow if that employer instead instructed an employee, "Program that computer to make a copy when a customer requests one." To hold otherwise makes no sense, and may cause great harm unless corrected.

Imagine, for example, how this holding about the inherent "non-volitionalness" of automated acts could affect attempts to prosecute persons for computer crimes. But for now, this banal distinction matters because it claims that the automated is special--that copyrights ought to affect an "automatic" copying system differently from a human-operated copying system.

Such claims are dead wrong. The history of U.S. copyright law proves that computers, networks, or similar "automatic systems" cannot be given any special treatment, except as provided expressly by statute. Contrary claims, like those made in Cablevision and in Â§ 13.9 of Patry on Copyrights, suffer from three defects. Each is fatal:

In 1965, Congress understood the potential significance of digital technologies: Section 13.9 of Patry on Copyrights claimed that the Â§ 106(3) distribution right should be narrowly construed as to digital technologies because Â§ 106(3) took its roughly final form in 1965, when Congress was surely unaware of either the possibility or the potential significance of digital distribution. But that claim is wrong.

[T]he transmission of works by nonprofit broadcasting, linked computers, and other new media... may soon be the most important means of disseminating [works]. Even when these new media are not operated for profit, they may be expected to displace the demand for author's works by other users....

In short the potential importance of distribution via "linked computers" was specifically called to the attention of Congress in 1965. Any contrary claim is error.

Special treatment for genuinely unanticipated "automatic systems" or technologies would still contravene the express intent of Congress: Implicit in both Mr. Patry's and many similar arguments is a premise: if a given technology or use was not anticipated by the drafters of a given copyright act, then the copyrights it granted should be narrowly construed as to this later-developed technology or use. In the case of the distribution right, this premise is wrong as a matter of fact. But it is also wrong as a matter of law as applied to almost any case.

The drafters of the Copyright Act of 1976 were painfully aware of the consequences of failing to specify whether or how statutory copyrights were intended to apply as to later-developed technologies. Preceding U.S. copyright acts, including the Copyright Act of 1909, were sparse, skeletal statutes that often left it to the courts to decide what critical terms like "copy" or "perform" were intended to mean--and gave courts no guidance as to whether or how such terms were meant to apply as to later-developed technologies.

Consequently, in cases like White-Smith, Fortnightly, and Teleprompter, courts had tended to interpret copyrights narrowly as to new, unanticipated technologies. And when they did so, Congress then had to fill the resulting gaps in protection. Naturally, the compromise inherent in legislation ensured that the resulting "fix" was never an exclusive right, but a compulsory license. Had such legislative/interpretive practice continued, technological change would have inevitably eroded the exclusive rights envisioned by the Constitution, leaving only a tangle of technology-specific compulsory licenses.

Fortunately, in the Copyright Act of 1976, Congress halted this otherwise inexorable slide toward compulsory licensing. Congress did so by re-defining the basic principles of copyright protection in technology-neutral terms and stating explicitly that these principles were intended to apply even as to unknown or unanticipated technologies.

In Â§ 102(a), the 1976 Act thus states, "Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Section 101 reversed any future re-iteration of White-Smith by defining "copies" and "phonograms," as material objects "fixed by any method now known or later developed, from which the [work or sounds] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Section 101 also reversed any future re-iteration of Teleprompter or Fortnightly by defining "perform" to mean "to recite, render, play, dance, or act it, either directly or by means of any device or process...."

In the Committee Reports on the 1976 Act, its drafters reiterated the intent behind such changes: "This broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from cases such as [White-Smith] under which statutory copyrightability... has been made to depend upon the form or medium in which the work is fixed. Under the bill, it makes no difference what the form, manner, or medium of fixation may be... and whether it is capable of perception directly or by means of any machine or device "now known or later developed." H.R. Rep. No. 94-1476, 2nd Sess. at 52 (emphasis added).

As a result of these critical, deliberate changes in the very nature of U.S. copyrights, claims that copyrights should be narrowly construed or applied as to any new technology must fail. Any further resort to such claims was foreclosed by both the text of the Copyright Act of 1976 and the intentions of its drafters. The Copyright Act of 1976 was intended to--and did--foreclose any future claim that a "copy" is not a "copy" because it was readable only by a machine. For similar reasons, it should also foreclose any claim that a "copy" is not a "copy" because it was created only by a machine.

Congress actually enacted--and then repealed as misguided--statutory special treatment for computers, networks, and similar "automatic systems": This is the death-blow to any argument for special treatment for computer networks or similar "automatic systems" for copying or transmission: the judicial power of interpretation cannot re-enact what Congress once expressly granted by statute and then expressly repealed.

The enactment of the Copyright Act of 1976 generally concluded the decades-long Fourth General Revision of U.S. copyright law. But during this revision process, Congress recognized the potential complexity and importance of the ongoing debates about whether and how copyrights ought to apply to computers and similar automated systems. As a result, Congress took two steps to ensure that these issues received the serious consideration that they might require.

First, it created a special commission of experts, the Commission on New Technological Uses (CONTU) to study these, and other, issues and report its findings.

Second, while CONTU's study proceeded, Congress enacted a law to ensure that computers, networks, and similar "automatic systems," (and all uses of works related to them), would be special--that they would be treated differently from other technologies and uses. As originally enacted, Section 117 of the Copyright Act of 1976 stated:

Notwithstanding the provisions of sections 106 through 116 and 118, this title does not afford to the owner of copyright in a work any greater or lesser rights with respect to the use of the work in conjunction with automatic systems capable of storing, processing, retrieving, or transferring information, or in conjunction with any similar device, machine, or process, than those afforded to works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title.

Here, in the original Â§ 117, the special treatment of "automatic systems capable of storing, processing, retrieving, or transferring information" is explicit, sweeping, and directed towards the application of the exclusive rights of copyright owners to these technologies and related uses of works, particularly those involving the "storing, processing, retrieving, or transferring" of information.

But on July 31, 1978, CONTU released the Final Report of the National Commission on New Technological Uses. In relevant part, CONTU concluded, "the Commission believes that the [Copyright Act of 1976] effectively deals with the interests of both proprietors and users and requires but little modification at this time." CONTU thus concluded that, subject to a few proposed limitations, "Congress should immediately enact legislation to repeal section 117 of the 1976 Act...."

Two years later, in the Bayh-Dole Act, Pub. L. 96-917, Â§ 10, 94 Stat. 3028, Congress did just that: it repealed the special-treatment provisions of the original Â§117 while enacting even fewer limitations than CONTU had proposed. By 1980, special treatment for "automatic systems" had thus been considered, granted, analyzed, rejected, and repealed.

In conclusion, two critical principles emerge from the preceding analysis:

First, in general, claims that copyrights should be narrowly applied as to technologies or uses of works that were not contemplated by the drafters of the 1976 Act are wrong: Doing so contravenes both the text of the Act and the expressed intent of Congress.

Second, while such claims should always fail, they are uniquely untenable if made as to any "automatic systems capable of storing, processing, retrieving, or transferring information, or... any similar device, machine, or process." Legitimate exercises of the judicial power of interpretation cannot revive, even in part, the now-repealed, automatic-systems-are-special principle once enacted in the 1976 version of Â§ 117.

Finally, I would like to thank Professor Lee Hollaar for realizing that someone should put CONTU's Final Report online.